In April 2009, PEN Slovakia, an organisation which campaigns on behalf of persecuted writers and in favour of free expression, issued a statement condemning the publication in a Slovakian journal of a poem by Radovan Karadžić.  One important facet of any understanding of literary freedom is the concept of the limits, which are framed in terms of ‘hate speech’. Addressing the question of whether PEN Slovakia's condemnation of the publication of Karadžić's poetry contradicts its self-declared standpoint on freedom of literary expression, is a lens through which to demonstrate the inadequacies of the traditional approach to freedom of expression, with its emphasis on ‘striking a balance’ between freedom of expression and harm caused by hate-speech.  The capabilities approach – developed by Amartya Sen and Martha Nussbaum, and which Katherine Gelber has applied to hate speech – provides a more effective remedy to this ongoing dilemma.

If we conceptualise of the writer-society relationship as a symbiotic one, the flipside to the necessity of ‘protecting the writer from society’ (that is, protecting the writer from both censorship and the kind of self-censorship outlined by Orwell) would be ‘protecting society from the writer’, in instances where a writer’s works could cause tangible damage to disadvantaged groups – namely, through literary hate speech. 

It is worth reiterating that the term literary hate speech applies only to literature which causes tangible harm, such as incitement to racial hatred or – as could be argued in the case of Karadžić’s poetry – incitement to genocide, not to literary works which are considered offensive to cultural groups, even if these cultural groups are minorities in a disadvantaged position vis-à-vis the wider society or nation state.

Image by Andrej Isakovic/ AFP/ Getty Images

Hate speech can be defined as speech (or symbolic speech) which paints a derogatory picture of others on grounds of race, gender, ethnicity, sexual orientation, etc., which incites aggression against that group.  For the purpose of this analysis, it works to provisionally accept that all hate speech has the potential to incite harmful social movements and social violence, as it is widely accepted that most hate speech performs this act, and the theoretical example of what to do about 'the hate speech which fails to incite' is of less immediate concern.

Both PEN Slovakia and the journal which published his poetry over-simplified the dilemma of whether we censor hate speech in artistic works, and framing the debate as a simple ‘freedom of expression or censorship’ issue ignores the complexities of literary hate speech in particular, and the particularities of Karadžić’s poetry.  Given the failure of the traditional debate on free speech, we must build a position on hate speech that centres around two ideas: the importance of context, and the necessity to provide a forum for those affected by hate speech to 'speak back'.  

Demonstrating the applicability of the capabilities approach to this issue asserts that only a positive-liberty approach can provide a position in which the principle of upholding freedom of speech and the 'goal' of diminishing the harmful effects of hate speech can be complementary and mutually-reinforcing.

Karadžić and poetic ultranationalism

I’d argue that Karadžić's poetry does constitute 'hate speech', although such a belief doesn’t necessarily entail the conclusion that we must therefore censor it.  Karadžić's poetry requires exploration because it is highly atypical of 'hate speech', and one problem with the traditional debate on freedom of expression is that is doesn’t accommodate this kind of hate speech, focused as it is on explicit communication rather than subtle and allegorical modalities of hate speech. 

Karadžić was once known primarily as a poet and poetry is also central to his self-identity.   Sudurkowski notes that a "self-romanticizing macho" aesthetic runs through poems in which Karadžić writes in the first-person voice of a 'poet.' More generally, in both his poetry and statements about poetry, Karadžić repeated the theme of poet-warrior identity, in which the creative act of poetry is inextricably bound up with the poet's role as a soldier, an identity which is mirrored in the frequent military motifs and poetry in which war is the subject matter. Although we can’t conclude from this that his poetry constitutes hate speech, it is worth acknowledging: Karadžić himself sees his poetry and his activity as a 'warrior' as conceptually inseparable.

It is also worth highlighting the fact that Karadžić's poetry has sold widely and won numerous awards: for instance, in 1994 the Russian Writer's Union awarded Karadžić its prestigious Mikhail Sholokov Prize.  New collections of his poetry were even published after the ICTY warrant for his arrest was issued.  While it doesn’t necessarily follow that the popularity and occasional literary 'acclaim' of his poetry has a bearing on whether or not the poetry itself, taken alone, can be deemed to constitute hate speech, it’s worth bearing in mind the practical issue of such popularity: namely, that if his poetry constitutes hate speech, Karadžić had and still has a wide forum and readership to whom he can disseminate his poetic 'message' of incitement to social violence. 

Moreover, if we attempt to approach Karadžić's poetry 'blind', as though we didn’t know who wrote it, it’s impossible not to be struck by the predominance of imagery relating to militarised and ritualised violence, purity, cleansing and ethnic superiority. 

His poetry could be divided into two categories: firstly, those which reconstruct and re-appropriate ancient history, particularly in frequent allusion to the 1389 Battle of Kosovo; secondly, poems in a contemporary setting, which simultaneously fetishise modern warfare and mourn the lost Eden of ancient Serbia. These two strands come together in Karadžić's poet-warrior identity, which allows him to stitch himself neatly into a mythologised present day, in which Karadžić re-enacts the role of an ancient hero in a war which is both modern and of 'mythic' proportions.

The central problem Karadžić's poetry presents to us, however, is the issue of explicitness. Andrew Rubin has described Karadžić's poetry as "a psychic landscape of eerie and illogical violence", but although war is a central theme (in poems such as 'War Boots', and 'Grenade') it is often metaphorical, either using military metaphors to describe natural scenes, like hurling a grenade at the "ambush of dawn", or else using lyrical, 'natural' language to describe war scenes. This presents immediate problems for discerning hate speech, which we normally consider to be explicit and uncoded. Moreover, allegories and metaphors abound, which contain within them concerning tropes without explicitly containing genocidal ‘incitement’, such as depictions of Sarajevo as a 'bride' waiting to be taken by the 'poet-warrior'. 

At face value, it would be hard to read such symbolic, non-literal language as incitement to violence.  However, when taken together with his reconstruction (or re-appropriation) of ancient history, this fetishisation of violence and purity combines to form a comprehensive 'code' which expresses an entire worldview: a worldview of 1990s Serbian ultranationalism, in which violence against others is obligated by the 'pure'.

If we locate Karadžić's work within the landscape of other Serbian-nationalist artists and their audience, it is clear that Karadžić's poetic ‘warrior’ code is not a private one, but one which his intended audience would have understood, and which Karadžić knew his audience would understand.

It’s also worth briefly noting the role that writers and artists could be said to have played in stoking ultranationalism during the period Milošević was in power, as locating Karadžić's poetry in the broader artistic climate better illuminates how his poetry could perform the 'act' of incitement to social violence. Although it would be overstating the case to say that writers played a larger role in Serbian ultranationalism than they have in other exclusivist ideologies or regimes,

Rei Shigeno has shown how Serbian-nationalist intellectuals, particularly writers involved in the journal Praxis, were central to rehabilitating the concept of exclusivist nationalism during the 1980s by deftly articulating it within the rubric of socialism, so that it could no longer be dismissed as bourgeois.  Shigeno shows how the Serbian writer Dobrica Cosic was the first figure to raise the issue of nationalism some twenty years before.  By the 1980s, when the discourse on nationalism had shifted significantly, Cosic became a crucial signatory of the Memorandum by the Serbian Academy of Arts and Sciences, which was later used as evidence at the ICTY, as it provided evidence of 'rationale' or mens rea for the mass crimes committed during the 1990s.

Nor was artistic construction of nationalism only enacted by writers or other traditionally 'highbrow' artists: Robert Hudson has written on the role popular music, particularly turbo-folk, played in the construction of Serbian exclusivist identity in the 1980s and 1990s.  Situating Karadžić's poetry in this broader artistic landscape gives us a clearer idea of its potential to communicate an ultranationalist agenda: even if (and it is likely that) his poetry alone would not have been enough to construct an ultranationalist climate, when taken together with other persuasive and popular constructions of nationalism in art, its 'code' gained both a veneer of legitimacy and an artistic potency through which it could efficiently disseminate a message of exclusivism and sectarianism.

A related issue is the way in which Karadžić used his poetry during his time as a military leader.  Surdukowski notes that, throughout the conflict, Karadžić would recite both his own poetry and the poetry of nineteenth-century (arguably, nationalist) poets like Njegos during his visits to the frontline.  

Moreover, documentary footage by Paul Pawlikowski provides evidence of Karadžić and posturing Russian ultranationalist Eduard Limonov reciting poetry and simultaneously firing down on to Sarajevo, while the city was under siege, literally linking their involvement in war crimes and their poetic 'activity' in the same moment in time.  In a gruesome sense, then, it could be said that Karadžić perhaps provides a paradigm of the circle of hate speech: as seen in Pawlikowski's footage, he himself performs the act that his works incited others to perform.

In other words, if we take hate speech to be speech that incites social violence, there can be little doubt that Karadžić's poetry fulfils this criteria. Having established this, in one sense the question is just: what should we do about Karadžić's hate speech?  Before we address this, however, we must note two problems: firstly, the issue of 'explicitness', secondly, the dilemma of whether the fact that Karadžić-as-an-individual committed war crimes weighs upon on how we treat Karadžić's poetry. 

While Karadžić's unique role as both propagator of artistic hate speech and enactor of war crimes provides a way of conceptually capturing the whole 'cycle' of hate speech, it is not clear that this overrides the basic principle that we must always separate the biography of an artist from analysis of the artwork itself. 

This issue -- of what to do when one individual is, for instance, both-Riefenstahl-and-Hitler-simultaneously, that is, both creator of artistic hate speech and a central political figure in a genocidal or fascistic regime – is perhaps not such of a practical concern here if we consider that – as argued above – Karadžić's poetry constitutes hate speech even if we read it 'blind'.

It does, however, raise the theoretical question of what to do about art by perpetrators of social violence, war crimes and genocide, when the art produced by such individuals does not, itself, constitute hate speech, but does lend that figure some veneer of legitimacy or sympathy with their 'audience'. 

Moreover, in dealing with Karadžić’s poetry, we are dealing with hate speech of a specific type – that is, genocidal hate speech.  This is worth pointing out in order to distinguish this discussion from, for instance, misogynist or classist hate speech which, while highly damaging, do not fit the 1948 Convention on Genocide’s criteria of incitement to “destroy, in whole or in part, a national, ethnical, racial or religious group.”

Although the ‘indirectness’ of Karadžić’s poetry, as outlined above, leaves open the question of whether it fulfils the criteria of “direct and public incitement” in the Convention on Genocide, the point remains that his poetry does not constitute mere hate speech, but genocidal hate speech, however covert. 

The uniqueness of genocide, and thus the uniqueness of genocidal hate speech as opposed to other forms of hate speech, brings to the fore tension between – on the one hand – the need for the ‘individualisation of guilt’ as emphasised in transitional justice theory and the legal framework of war crimes tribunals – and, on the other hand, the emphasis in social science and historical analysis of genocide, of the broader ‘cultural climate’ that enabled genocide to be enacted, which has been explored by theorists such as Arendt, Adorno and Zygmunt Bauman.  We need to consider what we mean by ‘genocidal hate speech’, before we can look at the ways in which this can be addressed more adequately than the traditional ‘freedom of expression’ debate has been able to.

Art, fascism and ultranationalism

In her 1975 essay 'Fascinating Fascism', Susan Sontag criticises the resuscitation of the reputation of Nazi filmmaker Leni Riefenstahl, and in doing so presents two key aspects missing from the traditional freedom of expression debate. The first is the overlap of fascistic art and 'legitimate' Western culture, which highlights the traditional debate’s failure both to address the idea of the ‘grey line’ between hate speech and non-hate speech and its failure to focus on the issue of ‘genocidal’ hate speech in particular; the second is the importance of context, which takes us part-way towards a solution. 

In analysing the work of Nazi filmmaker Riefenstahl, Sontag outlines the 'bleed' of fascistic art into culture we deem legitimate.  Sontag links the renewed celebration of Riefenstahl's work in the 1970s to the latent, undetected continuation of Nazi aesthetics in Western art.  She argues that Riefenstahl's reputation was 'de-Nazified' because the presence of these themes in her work were mistakenly taken to indicate that she was not involved in the project of constructing a Nazi aesthetic and providing a kind of visual reinforcement of Nazi values; Sontag, however, argues that this is because fascist aesthetic is entirely consistent with broader trends of Western art, including supposedly progressive art in the 1970s. 

She writes: "it is generally thought that National Socialism stands only for brutishness and terror.  But this is not true.  National Socialism – more broadly, fascism – also stands for an ideal or rather ideals that are persistent today under other banners: the ideal of life as art, the cult of beauty, the fetishism of courage, the dissolution of alienation in ecstatic feelings of community; the repudiation of the intellect; the family of man (under the parenthood of leaders).  These ideas are vivid and moving to many people, and it is dishonest as well as tautological to say that one is affected by 'Triumph of the Will' and 'Olympia' only because they are made by a filmmaker of genius."

This is not to say that art by Riefenstahl – or, if we transpose the argument across, Karadžić – is legitimised by bearing resemblance to art we accept as part of the canon of Western culture.  If anything, it is the opposite: if we find Riefenstahl disturbing, it should not be because her aesthetic and content or 'message' is an aberration of our culture's sensibilities, but precisely because many of her photographs would not look out of place variously in Vogue or a twentieth-century art gallery.

Zygmunt Bauman has demonstrated how the first generation of Holocaust historians often portrayed the Holocaust or Shoah as an aberration of Western culture and history, committed by a handful of monsters fundamentally psychologically different from other people, rather than situating the genocide within the broader context out of which it was born.  As Bauman shows, this position is both historically inaccurate and ethically unhelpful, and a full understanding of such atrocities can only be achieved by understanding how they arose out of a culture – in part, through art – we believe to be 'legitimate'.  Fascism and the Holocaust, in other words, were born out of Western culture, and cannot be conceptually cut off from it.  (This argument can be transposed to the analysis of how Karadzic's poetry is situated in the context of Serbian culture, although it is worth noting that -- however 'ultranationalist' these constructions were -- 'fascist' is a historically inappropriate term and an identity which post-Tito Serbian nationalism has frequently defined itself in opposition to).

Moreover, when we look beyond Nazi art and genocidal hate speech in particular, it becomes clearer that we can almost never neatly set aside discriminatory art – art which has the effect of hate speech – and treat it as a discrete category. In Culture and Imperialism, Edward Said outlined how works of colonial-era British literature upheld the project of British imperialism and facilitated the construction of imperial identity and an ‘Other'-ing conception of colonised peoples which created a climate whereby institutional global discrimination became acceptable – even in works often regarded as neutral or domestically apolitical, like Austen's Mansfield Park.

Moreover, Terry Eagleton, writing on Irish literary traditions, has shown that even literature which intends to respond to or oppose the exclusivist literature identified by Said often does so on the same terms, whether intentionally, through irony, or otherwise.  Although working within literary theory, Said and Eagleton raise a pertinent question for political philosophers: in light of the perspective of Culture and Imperialism, where would those who believe we must limit free speech at the point of hate speech draw the line when dealing with fascistic, racist and otherwise discriminatory overtones in art – at Wagner, at Little Black Sambo, at Shylock? 

The problem these artworks pose is that, while they contain no explicit incitements, nor are they (merely) “offensive” in the way, for instance, Salman Rushdie's novel The Satanic Verses was: as Said shows, they normalise existing discrimination and construct a climate in social violence against 'Others' becomes acceptable.  Karadžić's poetry – implicit, metaphorical, but overwhelmingly ultranationalist – falls into the same problematic category.  The traditional debate on freedom of expression has no way to accommodate this grey area. 

The second important issue Sontag's essay raises – the question of context – provides a partial solution. Sontag berates both traditional art criticism and fashion-preoccupied 'aesthetes' for decontextualising Riefenstahl by locating her work variously within the false neutrality of formalism or viewing it with a camp sensibility which refuses to seriously acknowledge content.  She highlights the problem this presents for identifying fascist overtones, leaving the audience vulnerable to absorb their message. She writes: "Riefenstahl's current de-Nazification and vindication as indomitable priestess of the beautiful…does not augur well for the keenness of current sensibilities to detect the fascist longings in our midst.  Without a historical perspective, such connoisseurship...prepares the way for a curiously absentminded acceptance of propaganda of all sorts of destructive feelings – feelings whose implications people are refusing to take seriously".

Sontag concludes that "taste is context", that only by continually placing Nazi art in its historical perspective are we safe from perpetuating fascist aesthetics, and therefore fascist ideology.  We can see this in Habermas's idea of speech as communicative action: that speech does not perform the same 'act' at all times, but is instead context-specific.  In the Introduction, I introduced the idea that hate speech can be defined as speech or symbolic 'speech ' which performs the act of incitement to social violence. Using Habermas's idea, we can reformulate our definition to say that, when the context does not allow the 'act' of incitement to social violence to be performed, the work is no longer hate speech in that context.

The idea of context is built into our everyday approach to artistic hate speech. Imagine, for instance, the difference between using Riefenstahl's art in an academic seminar on the role of art in fascist identity and using it gratuitously at a neo-Nazi rally. Our common sense tells us that we can't make equivalence between the two events, because the context would not allow Riefenstahl's art to perform the same 'act' in both circumstances. 

The traditional freedom of expression debate ignores both the 'bleed' of fascistic or ultranationalist art into wider Western culture, and the issue of context.  The overlap between fascistic art and art we consider legitimate shows that the traditional debate cannot apply its rubric to art, as it is overly focused on explicit incitement.  This is particularly problematic because it is subtle and implicit art like Riefenstahl's and Karadžić's which many people find most moving, and thus has more power to incite them to social violence.  

The idea of context allows us to modify our definition of hate speech, meaning that even if we support censoring ultranationalist or fascistic art, we do not need to censor it in all contexts.   Finally, it’s important to acknowledge the limitations of the insight Sontag's work provides on context – while an improvement on the traditional debate, it doesn’t provide a comprehensive practical framework, of how exactly to ensure that hate-speech art is always presented in a context which undercuts its power to incite social violence. This is where the capabilities approach can be used to provide a more helpful way of addressing hate speech.

Capabilities approach and hate speech

The capability approach was developed to remedy the deficiencies of both utilitarian and Rawlsian social contractarian theories of justice.  It is an outcome-oriented theory of justice, which measures the 'justness' of any social arrangement or nation by the extent to which it secures for each individual a list of central 'capabilities' like the ability to live to an old age, the ability to participate in broader politics and culture, and the ability for self-realisation. One advantage of this approach is that it does not measure equality solely in terms of an individual's resources, but in terms of substantive freedoms that would allow a person to pursue the kind of life they desire to, and in this sense it is less open to the criticism of ‘prescriptiveness’.

Drawing on Nussbaum’s work to find more fruitful ways to approach hate speech, Katharine Gelber proposes the approach of 'speaking back', which entails providing institutional support to groups who have been harmed by hate speech, giving them public space to refute and respond to derogatory accusations and negative depictions of their group.  This approach acknowledges that hate speech limits the capacities of those who are maligned by it. Gelber notes that one of the harms of hate speech is its 'silencing' effect on the disadvantaged group, as it creates a climate in which members of the targeted group no longer feel able to verbally defend themselves. 

Gelber's idea of a forum for 'speaking back' can be interpreted as a group right, inasmuch as the forum would be provided for members of a targeted group, rather than individuals harmed by, for instance, defamation or libel, which judicial systems already accommodate. The policy is aimed at changing the cultural climate so that hate speech cannot become acceptable, as those who propagate it would realise that their hateful depictions and statements would not be allowed to dominate social discourse, and the potency and legitimacy of hate speech would be undermined in the eyes of the intended audience.

I’d propose that we combine the 'speaking back' policy with the idea of context developed in the previous sub-chapters: if Riefenstahl's films are screened at, for instance, an ultranationalist or anti-Semitic rally, ensuring that the society's Jewish community had adequate space and support to address the intended audience of the film would undermine much of the power of Riefenstahl's film, which would no longer be able to perform the 'act' it intended, of presenting – without interruption or contradiction – an appealing, aesthetically-pleasing fascistic worldview. In other words, the forum of 'speaking back' in some ways contextualises hate speech, negating its power to convince.

Combined with the idea of context, the ‘speaking back’ proposal is a helpful contribution to the hate speech debate, for several reasons.  Firstly, it solves the problem of the traditional debate in which the need to combat the harm of hate speech and the need to protect free speech are seen as conflicting concerns.  In this approach, instead of resorting to either censorship or acceptance of the inevitability of hate speech, hate speech is tackled with free speech. 

This also takes us some way toward solving the dilemma posed by Sontag and the 'bleed' of fascistic art (or ultranationalist art, or ‘hate speech art’) into broader culture, as we would no longer have to undertake the impossible task of divining when the line is crossed in art.  That this approach aims to combat effects of hate speech, rather than focusing on what is or is not permissible for someone to say, makes it particularly helpful for artistic hate speech, because – as the analysis of Karadžić’s poetry above has indicated – subtle, implicit art can have a 'hate speech effect' though the 'message' is harder to discern.  Most fundamentally, the idea of ‘speaking back’ has the advantage of providing a way to be pro-free speech which nonetheless recognises the gravity of harm done by hate speech, rather than dismissing it as the inevitable collateral of upholding the free-speech principle.

This article is an edited extract from Heather McRobie’s book Literary Freedom, published by Zero Books